Invasion of Privacy and Copying under UKs Intellectual Property Act - Essay Example

? INVASION OF PRIVACY AND COPYING UNDER UK’s INTELLECTUAL PROPERTY ACT- AN ANALYSIS In UK, as of now, there is no specific or unique cause of action for intrusion of privacy of any individual as exists in USA. (Hart T 2008).Torts of trespass and nuisance safeguard various features of privacy in relation to trespass to an individual’s privacy that safeguards from bodily intrusion or interference and the defamation safeguard persons from having fallacious publications of their personal lives made public. In Campbell v MGN1, it was observed by Lord Nicholls that in the absence of all-embracing, overarching cause of action for “invasion of privacy” and however, there exists some judicial acknowledgement of privacy as a value strengthening rules of law on this gamut of law. (Harpwood 2008:408). Due to the absence of any direct or specific provisions in law to sue for intrusion of privacy by press, any claimant has to seek for limited and indirect legal proceedings like the breach of confidence. Customarily, this lies on the proof of existence of any special kind of association of confidence. In UK, relief is available when there is a breach of confidence. For instance, if information leaked during the course of professional or confidential relations like a barrister and a client where information passed on by the client should be treated as confidence, and if there is any misuse of any information or publication of the same, then it may result in a claim of infringement of confidence. These principles were laid down in cases like Prince Albert v Strange2 , Saltman Engineering Co Ltd v Campbell Engineering Ltd3 and this principle was again reconfirmed in AG v. Guardian Newspapers No 24 . Since, there is no specific law or regulation of privacy in the UK, it seems that UK is shifting towards more effective and a comprehensive privacy law immediately after the introduction of the Human Rights Act, 1988. In McKennit v Ash5, where Loreena McKennit, the folk singer succeeded against an appeal filed by an author of a book which she claimed that it infringed her privilege to privacy. It was held in this case that the claimants’ privilege to privacy was upheld by the court under the Article 8 of the ECHR, and the same was overridden by the Art 10 which offers right to the freedom of expression. (Harpwood 2008:409). In 2001, the Mirror Newspaper in UK published a news item about celebrity Naomi Campbell and the Mirror reported that Campbell was a drug addict, and she was actually receiving medical treatment by regularly visiting Narcotics Anonymous. The news item in the Mirror magazine contained some photos, which showed Ms Campbell in a NA meeting and some exhaustive information about the medical treatment received by Ms Campbell, and some news items appeared were claimed to be malicious. Vexed with Paparazzi, Campbell initiated legal action against MGN. The trial judge in the case of Campbell v MGN, found for the appellant. The Trial Judge was of the view that publication of confidential news by the Mirror was an infringement of Ms Campbell’s privileges under the provisions of the Data Protection Act 1998 and the laws of confidence. Aggrieved by this, MGN appealed and the Court of Appeal annulled the trial court’s findings. However, the House of Lords turned down the verdict of the Court of Appeal and upheld the trial court’s order of ?3,500 as damages to the appellant. The decision in Campbell case is of much significance as the Law Lords were of the view that there are yet no over-arching reasons for invasion of privacy in the UK. The House of Lords’ decision in Campbell case seems to have increased the present action for infringement of confidence by safeguarding the unfair usage of personal information without the necessity to create a confidential association. (Ajmal & O’Hare 2004). In UK, the law of privacy has been entirely established by the courts and it is growing case by case basis as the Parliament has not yet accorded its serious thought about it. (Davis J 2008). However, the right to privacy has limited the privilege of freedom of expression and there is no direct law is available in UK against invasion of privacy. For instance, a local newspaper, in the Green Corns Case, was given an injunction order from publishing private information. (Bentley L 2008). In Kaye v Robertson (1991) , the Court of Appeal refused to grant an injunction against the Sunday Sport for publishing Gordon Kaye, a reputed British television actor photographs of receiving treatment in a hospital after a car accident and commented that in UK , an aggrieved person like Gordon Kaye cannot apply for an injunction to stop publishing the journalists’ materials due to the absence of any provision both in the statute and in the Common law so as to safeguard the infringement of personal privacy of any citizen.( Crone et al 2002 :115). In Douglas v Hello! (2001) case, the Court of Appeal granted an injunction against Hello magazine for the publication of marriage photos of the plaintiffs. The actors Catherine Zeta-Jones and Michael Douglas made an agreement with OK! Publication for ?1.2 m for exclusive coverage of their marriage. However, the rival magazine Hello! , despite a tight security system, infiltrated and published photographs of their marriage well before OK! Magazine. However, later, the Court of Appeal dismissed the injunction granted and held that plaintiffs have every right to claim damages for the invasion of their privacy. (Crone et al 2002:125). In David and Victoria Beckham v MGN Ltd (2001), the plaintiffs were granted an injunction against the defendant for publishing the photographs of their new home. The plaintiff later requested for the extension of injunction against MGN Group Newspapers on the footing of against MGN group. The court extended the injunction as requested by the Plaintiffs. (MaQueen 2010) During the twentieth century, efforts to legislate law to safeguard the privacy of the individual were rhetorically opposed by the British Press. However, the integration of the ECHR into UK law as a part and parcel of the 1998 Human Rights Act has now promised a right to privacy to individuals in UK. We have already seen that British courts have awarded damages in Naomi Campbell v MGN, Michael Douglas & Catherine Zeta Jones v Hello! Magazine and these cases assisted to create a privacy law in UK, which was again corroborated in the Max Mosley’s case against News of the World in 2008 for circulating a story and pictures about sadomasochistic sex gatherings. The court verdict was in favour of Mosley thereby turning down the defence of the News of the World’s public interest cause. The court awarded ?60000 as damages to Mosley for the invasion of his privacy. (Williams2010:237). I strongly suggest that Natalie Gortlen should apply to the court for the grant of injunction against “Globe” magazine as held in “David and Victoria Beckham v MGN Ltd, Douglas v Hello! ,Kaye v Robertson (1991), Green Corns Case”, as if the news item is published , then it may result in security risks and invasion of privacy of Natalia. Copying Under UK’s Copyright Act The Copyright Act of 1976 of UK through the Sonny Bono Copyright Term Extension Act gives the author of a song or lyric copyright protection to the life time of the author and plus 70 years after his demise. (Gammons2007:31). Lyrics or a song is protected by the provision of literary copyright .For the copyright purpose, lyrics and music are separate features, and each can be hold by distinctive individuals, and they can be offered varied lengths of protection under copyright. Copyright is a type of legal safeguard offered by the UK laws to the creators or the authors of “creative works of authorship” of lyrics, songs, etc., that are available in a corporeal type like a manuscript, a CD or a tape. Thus, all the original songs, lyrics that are available in a tangible form are having automatic copyright facility under UK copyright laws. Thus, a composer, a songwriter, an author gets the copyright for his lyric or song automatically under UK laws. It is to be noted that copy right registration is not mandatory under UK laws but if any dispute arises as regards to ownership of any song or a set of lyrics at a future date, then it is the responsibility of the author of such a song to produce the requisite evidence of such ownership. . (Jones et al 2006:23). Section 3(1) of the 1988 Act elucidates a musical work as a work consists of music. Thus, a song, a libretto of an opera or a lyric would not be part and parcel of the musical work itself but would be regarded as a separate literary work. It was observed by the court of appeal that the essence of a musical work is a mixture of sounds to listen to and in a style to create impacts on the hearer’s intellect and emotions provided, they are recorded in a material form. (Jones et al 2006:23). In UK, Copyright offers the author the exclusive right to use his work. Further, a copy righted material offers the author a privilege to bar other from copying his lyrics or from doing some featured actions. Under UK copy Rights Act, copying the original work and communicating the copyrighted work to the general public is not permissible. For the purpose of copyright law, the concept of “ reproduction “ or “ copying” include two features, the actual usage of or the resemblance of the copyright work . (MaQueen 2010) In Francis Day & Hunter Ltd v Born6, it was held that “ an adequate magnitude of objective resemblance between the two lyrics and some informal linkage between the defendant’s and plaintiff’s work can be said to be copying or reproduction of a lyric or song. In Landbroke (Football ) Ltd v William Hill ( Football) Ltd 7, it was held that copying means the reproduction of a work but does not include instances where the compiler or the author generates a like outcome by an independent work without resorting to copying. If copying is alleged, then the court will analyse whether such person has copied major portion from the original work and this major part rests upon much on the quality and on the quantity what has copied from the original work.( Golvan2007 :28). In Hawkes & Sons Ltd v Paramount Film Service8 , it was held that twenty-eight bars of a musical work was adequate to amount to a “ major part” since the musical bars reproduced were distinctly recognisable and thus copying is being tied to quality and not quantity. (Davison 2003:26). In Baigent v The Random House Group9, it was alleged by the plaintiff that “central theme” of their book was copied by the respondents and hence resulted in the substantial part of their work was copied and hence there was a copyright infringement. Both the trial judge and court of appeals were held against the plaintiff. The court of appeals held in this case that the deduce of “central theme” was just a gathering of general facts and ideas, which did not tantamount to substantial copying from the plaintiff’s work. (Sparrow 2009: 68). As per s16, any individual or person who carries out or permits someone to carry out any of the special privileges without the approval of the copyright owner or without a licence violate the owner’s copyright. If the copying or piracy involves, even if the part of a work, and if such work is a substantial part of the work, then infringement has been made under “section 16(3) of the UK Copyright Designs and Patents Act 1988”. Thus, s16 (3) is attracted if an individual infringes, or if he authorises someone to do any of the acts barred by the copyright, whether directly or indirectly. (Strowel 2009:17). Under s 97 of the Copyright, Designs and Patents Act, 1988, a court can award damages for the flagrancy of the abuse of copyrights, and the court can ask the defendant to reimburse any further damages due to the abuse of copyrighted lyric. (Holyoak and Torremans 2010). Under s 97A, the court can grant an injunction against the proposed infringement of the copyrighted work. (Bainbridge 2010). I suggest that Mick Jiggle , Natalie’s close friend to file a suit against new band “ blue eyed Beans “and claim damages under s 97 of the Copyright, Designs and Patents Act, 1988 for the damages suffered due to such infringement . However, Mick Jiggle should establish that copying was substantial and quantitative as decided in “Hawkes & Sons Ltd v Paramount Film Service, Landbroke (Football) Ltd v William Hill (Football) Ltd and in Francis Day & Hunter Ltd v Born.” List of References Ajmal Noreen & O’Hare Paul. (May 2004). Naomi Campbell Ruling: Privacy Law Through the “Back Door?”[online] available from < http://kemplittle.co.uk/html/stay-posted/archive/short-lines/naomi-campbell-0504.html?SESSIONFRONT=b65408100f1bcdab3914b7dffb99e7e8> [accessed 20 July 2011] Bainbridge. (2010) Intellectual Property Law Eight Edition. London: Pearson. Bentley L (2008) Intellectual Property Law (3rd). Oxford: Oxford University Press Crone T, Alberstat P, Cassels T& Overs E. (2002). Law and the Media. New York: Focal Press. Davis J (2008) Intellectual Property Law: Core text series (3rd) Oxford: Oxford University Press Davison, Mark J. (2003). The Legal Protection of Databases. Cambridge University Press: Cambridge Gammons Helen (2007). The Art of Music Publishing: An Entrepreneurial Guide to Publishing .London: Focal Press. Golvan Colin (2007). Copyright Law and Practice, London: Federation Press. Harpwood, Vivienne. (2008). Modern Tort Law. New York: Taylor & France. Hart T (2008) Intellectual Property Law: Law Masters series (5th) London: Palgrave Macmillan Holyoak and Torremans (2010) Intellectual Property Law Sixth Edition. Oxford: OUP Jones Hugh, Jones Hugh, Benson Christopher& Christopher Benson. (2006). Publishing Law. London: Taylor& Francis MaQueen (2010) Contemporary Intellectual Property Law and Policy second edition. Oxford: OUP Sparrow, Andrew Peter (2009). The Law of Virtual Works and Internet Social Networks, London: Grower Publishing Ltd. Strowel, Alain. (2009). Peer-to-Peer File Sharing and Secondary Liability under Copyright Law London: Edward Elgar Publishing Williams Kevin, (2010). Read All About It: A History of the British Newspaper. London: Taylor& Francis Read More